Many years ago, Arthur Schlesinger wrote a book called The Imperial Presidency. His basic thesis was that the modern bureaucratic state and the nation’s mission during the Cold War created system too complex and demands too rapidly-changing to be governed primarily through legislation, and that Congress had responded by essentially abdicating power to the executive branch. Thus, over time, most laws and rules would become written by the agencies that would go out and enforce them, and with the proliferation of administrative law would come administrative courts, again within the executive branch. Thus, the executive would over time assume the functions of all three branches of government — and the President would sit atop a quasi-autocratic institution that wrote the rules, enforced the rules, decided who broke the rules, and what would happen to the rulebreakers.
A scary concept, for those of us who believe that a divided government forces deliberation and therefore respect for our common beliefs and ideals, like civil liberties. But it is important to note that Schlesinger presidence the abdication of Congressional, and by fiat, judicial power to the ever-growing power of the Preisdency.
Hearings will be called shortly after Judge Alito is confirmed into his new role as Justice Alito, to investigate “the Program” which spied on American citizens for over five years without warrants, despite the easy availability of those warrants from the FISA Court. Today we learn that Attorney General Gonzalez will soon testify before the Senate concerning the Administration’s argument that the inherent powers of the Presidency, coupled with Congress’ authorization of the use of force against al Qaeda, provides legal authority to the White House to begin “the Program.”
The primary defense of this “Program” that I have heard is, “If I’m not doing anything wrong, I have nothing to fear.” That is incorrect. You have autocracy to fear. I’ve never doubted the ability of the government to gather intelligence — whether domestically or abroad — to root out and destroy terrorists. But getting a warrant three days after starting that kind of intelligence-gathering when a subject of the intelligence is a U.S. citizen is not a heavy burden for the government to bear.
So if Gonzalez is right and Congress’ law authorizing the use of force against al Qaeda (and the implied necessity of gathering of intelligence to direct that use of force), then the line that Professor Schlesinger contemplated, the point beyond which Congress would have surrendered its Constitutional role as a co-equal branch of government and protector of the rights of American citizens, will have been crossed and the President will have become effectively an elected autocrat with few meaningful checks on his power, much like a medieval king. If, however, Gonzalez is wrong, then the White House will be exposed as having usurped power in the name of responding to a national security crisis, reserving to itself by its own authority the power to decide how far a citizen’s rights extend against the government. Unlike a medieval king, the President will have behaved like the leader of a military dictorship — and we should remember that although many military dictators seize power to the cheers of the observing masses, the story almost always ends badly. That is what you have to fear — even if you have not been doing anything wrong.
